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Court of Criminal Appeal 8 December 2025

Wonnocott v R

[2025] NSWCCA 208

Public order & justice offences
CRIME APPEAL AGAINST SENTENCE EFFECT OF MENTAL HEALTH ON OFFENDING DEGREE OF NOTIONAL ACCUMULATION SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Wonnocott v R [2025] NSWCCA 208
Court: Court of Criminal Appeal, NSW
Date: 8 December 2025
Judges: Ward P; Price AJA; Fagan J

Background

The applicant pleaded guilty in the District Court to two Commonwealth offences involving misuse of a carriage service. The first offence, committed on 11 April 2022, involved sending a series of threatening Instagram messages to a named individual that culminated in explicit death threats. The second was a rolled-up charge covering 45 separate social media messages sent between 27 July 2022 and 21 February 2023, targeting various individuals and groups with menacing and offensive content. The messages were directed at, among others, LGBTQ+ individuals and a member of parliament.

The District Court sentenced the applicant to an aggregate term of 3 years and 2 months imprisonment, with a non-parole period of 1 year and 4 months. A 25% discount was applied to each indicative sentence for early guilty pleas. The applicant had a history of similar offending stretching back to 2021, including a prior recognizance that was breached by the commission of the second count.

The applicant sought leave to appeal the aggregate sentence on five grounds, contending that the sentencing judge had made a series of errors in the exercise of his sentencing discretion.

  • Whether the primary judge erred by assessing the suitability of an Intensive Correction Order (ICO) before determining the appropriate length of the aggregate sentence
  • Whether the primary judge erred by failing to consider a Recognizance Release Order (RRO) under s 20(1)(b)(i) of the Crimes Act 1914 (Cth)
  • Whether the primary judge erred in his treatment of the applicant's mental health as a mitigating factor, or failed to give adequate reasons
  • Whether the primary judge erred in the degree of accumulation applied when setting the aggregate sentence
  • Whether the aggregate sentence was manifestly excessive

Decision

ICO assessment: The Court accepted that the sentencing judge departed from the correct procedural sequence by evaluating ICO suitability before fixing the length of the aggregate sentence. However, once the judge determined that a sentence of 3 years and 2 months was warranted, the earlier ICO assessment became redundant. A sentence of that length would in any event have been ineligible for an ICO. The procedural misstep caused no practical consequence and did not result in a miscarriage of the sentencing discretion.

Recognizance Release Order: Because the aggregate sentence exceeded three years, the sentencing judge was required by s 19AB of the Crimes Act 1914 (Cth) to fix a single non-parole period. The RRO mechanism in s 20(1)(b) was therefore simply not available on the facts. The Court found no error in the judge's failure to consider it.

Mental health: The Court held it was open to the sentencing judge to find that the applicant's depressive symptoms had only a very limited connection to the offending. The judge was entitled to make modest adjustments to the weight given to general deterrence and moral culpability without being required to quantify those adjustments in precise terms. No inadequacy of reasons was established.

Accumulation and manifest excess: The Court found the judge correctly identified the distinct character of each count: the first involved a targeted, escalating death threat against identifiable individuals; the second involved a broad, generalised pattern of bigotry directed at various recipients. Given that distinction, the degree of notional accumulation applied fell within the proper exercise of sentencing discretion. Taking all considerations together, including the applicant's lengthy history of similar offending and the failure of earlier rehabilitative dispositions, the aggregate sentence was not manifestly excessive.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A procedural error in assessing ICO suitability before fixing the length of an aggregate sentence will not vitiate the sentence where the error had no practical consequence on the outcome reached.
  • Under the Crimes Act 1914 (Cth), where an aggregate sentence exceeds three years, s 19AB requires a single non-parole period to be fixed, and the RRO regime in s 20(1)(b) is not applicable.
  • Where a sentencing judge finds only a limited causal connection between a mental health condition and the offending, small and unquantified adjustments to deterrence and culpability are permissible and do not constitute an error of principle or inadequate reasons.
  • In dismissing the accumulation ground, the Court of Criminal Appeal confirmed that the distinct character of individual offences within a sentencing exercise is a legitimate basis for significant notional accumulation.
  • A conclusion of manifest excess requires the excess to be "plainly apparent"; a history of similar prior offending, repeated failure to respond to rehabilitative sentencing, and the gravity of the offences are all relevant factors weighing against that conclusion.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 474.15(1), 474.17(1)
- Crimes Act 1914 (Cth), ss 19AB, 20(1)(b)(i)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223